Pope v. State

• Court: Supreme Court of Delaware
• Decided: May 24, 2023
• Docket: 96, 2023
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

TRAVON POPE § § Defendant Below, § No. 96, 2023 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 0202005502 (K) § Appellee. § §

Submitted: May 10, 2023 Decided: May 24, 2023

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.

ORDER

After consideration of the notice to show cause and the responses, it appears

to the Court that:

(1) On March 17, 2023, the appellant, Travon Pope, filed a document titled

“motion for considering a late appeal” that was designated a notice of appeal from a

Superior Court order. The Superior Court docket reflected that the Superior Court

sentenced Pope for a violation of probation (“VOP”) on January 20, 2023 and denied

his motion for sentence modification on March 6, 2023. A timely notice of appeal

from the January 20, 2023 VOP order should have been filed on or before February 20, 2023.1 The Clerk’s Office directed Pope to file a Form A notice of appeal

indicating whether he was appealing the January 2023 VOP order, which would

result in the issuance of a notice to show cause for untimeliness, or the March 6,

2023 order, which would be timely.

(2) On March 30, 2023, Pope filed a Form A notice of appeal identifying

the January 20, 2023 VOP order as the order he was appealing. The Senior Court

Clerk issued a notice directing Pope to show cause why this appeal should not be

dismissed as untimely filed. In his response to the notice to show cause, Pope states

that his attorney did not advise him that he had to appeal the VOP order within thirty

days.

(3) At the Court’s request, Pope’s attorney responded to this statement.

Pope’s attorney stated that he completed a VOP sentencing worksheet and an Advice

Regarding Appeal From VOP form for this matter. The advice form advises a

defendant that he has thirty days to file a notice of appeal and that VOP counsel will

not pursue an appeal. Pope’s counsel further stated that the advice form and a notice

of appeal form are provided to the defendant. He provided copies of the sentencing

worksheet and advice form in this case, which reflected that Pope was advised he

had thirty days to file a notice of appeal.

1 Del. Supr. Ct. R. 6(a) (providing that the notice of appeal must be filed within thirty days). 2 (4) Time is a jurisdictional requirement.2 A notice of appeal must be

received by the Office of the Clerk of this Court within the applicable time period in

order to be effective.3 Unless an appellant can demonstrate that the failure to file a

timely notice of appeal is attributable to court-related personnel, an untimely appeal

cannot be considered.4

(5) The record does not reflect that Pope’s failure to file a timely notice of

appeal of the January 23, 2023 VOP order is attributable to court-related personnel.

Consequently, this case does not fall within the exception to the general rule that

mandates the timely filing of a notice of appeal, and this appeal must be dismissed.

NOW, THEREFORE, IT IS ORDERED, under Supreme Court Rule 29(b),

that this appeal is DISMISSED.

BY THE COURT:

/s/ Karen L. Valihura Justice

2 Carr v. State, 554 A.2d 778, 779 (Del. 1989). 3 Supr. Ct. R. 10(a). 4 Bey v. State, 402 A.2d 362, 363 (Del. 1979). 3